By Dr. Ken Broda-Bahm:
For those defending the reality of human-induced climate change, it is a familiar datapoint: A consensus of 97 percent of climate scientists supports the conclusion that our species is contributing to global warming and other effects on the climate. Climate change skeptics, of course, have their own consensus: a “Petition Project” including some 31,000 who say there is “no convincing evidence.” The latter has been debunked on the basis that signers to the document don’t have to be climate scientists, or necessarily scientists at all. But one might be understandably cynical about whether either side’s consensus figure is going to be convincing to the other. After all, attitudes like these tend to have a documented self-sealing nature, since the presentation of information that might threaten my worldview tends to create a motivation to debunk that information, and that exercise of motivated debunking just makes the original belief even stronger.
Based on recent research, however, there might be an exception to this self-sealing belief system. Based on recent findings of researchers from George Mason and Yale Universities (van der Linden, Leiserowitz, & Maibach, 2017), when presented with information of a consensus, study respondents are more likely to shift their own views in the direction of the perceived norm. Not all of them will do that, of course, but a substantial number, particularly among conservatives, do seem to be influenced by the consensus. This finding, described in a recent release in ScienceDaily, points to a rare bright spot on our current ‘Alt-Fact’ horizon, and it carries some implications for the legal persuader who will sometimes need to win over the skeptical judge or juror.
By Dr. Ken Broda-Bahm:
There’s a quote most often associated with Martin Luther King: “The arc of the moral universe is long, but it bends toward justice.” When applied to historical progress, these words generally connote the comforting message that “Things get better.” Our recent history, however, seems dedicated to showing that if there’s an arc, it isn’t necessarily a smooth one, and sometimes that bend toward justice takes some jagged turns. For example, the completed administration of America’s first African-American president did not soothe the country’s troubled experience with race. Rather, it inflamed it. Perceptions of racism as a major problem grew throughout the Obama Presidency, and then exploded afterward.
According to a Pew Research survey of 1,893 adults conducted last month, the percentage reporting that racism is a “big problem” has increased by eight points within just the last two years. That growth has been almost entirely among Democrats, widening what has been an already-large gap between the parties. The gap is even greater between the races, with about half of whites and eight in ten blacks agreeing that racism is a big problem. But across the population, 58 percent agree, and that is up from 50 percent in 2015, and 41 percent in 1995. These social perceptions can drive reactions in litigation, not just in racial discrimination cases, but also in cases involving diverse parties and witnesses. In this post, I will take a quick look at the survey results and discuss a few implications. Continue reading
By Dr. Ken Broda-Bahm:
America is not yet post-racial, and the Nazis marching this week in Charlottesville, Virginia should be a reminder of that. Continuing tensions on race are played out in courtrooms as well. The as-yet unresolved issues of racial bias in jury selection provide one example. Race-based removals impact the criminal sphere more than civil sphere, and also matter more in some cases than others. Still the continued presence of strikes that seem to be based on race has led to some calls to eliminate the peremptory challenge altogether. For example, in a case earlier this year before the Washington State Supreme Court (City of Seattle v. Erickson), two judges joined in calling for “the complete abolishment of peremptory challenges” as the only sure-fire way to eliminate the constitutional problem of jurors struck due to their race.
But perhaps it isn’t necessary to throw that peremptories baby out with the racial-strike bathwater. A recent paper proposes one alternative that has worked in other contexts: open records that, the authors hope, will lead to a little more disinfecting sunshine on the exercise of strikes. In the article (Wright, Chavis, Parks, 2017), Ronald Wright, Kami Chavis and Gregory Scott Parks of Wake Forest University School of Law write on their newly-formed “Jury Sunshine Project,” which started at the state level, assembling records from more than 100 North Carolina courthouses on 1,306 felony trials involving approximately 30,000 removed jurors in 2011. Prosecutors in the state, they found, removed nonwhite jurors about twice as often as white jurors, and defense attorneys excluded white jurors more than twice as often as nonwhite jurors. It varied widely by city as well, with prosecutors in Charlotte, Winston-Salem, and Durham accepting significantly fewer nonwhite jurors than prosecutors in the rest of the state. In this post, I will write a bit on the project and what it potentially offers as a way to retain peremptory strikes while addressing their abuses. Continue reading
By Dr. Ken Broda-Bahm:
For a practical persuader, one of the most disturbing features of some biases is their self-sealing nature. When an audience suffers from confirmation bias, for example, you would hope that they could be taught out of it. That is, if they’re primed to think that all big corporations are evil, then you might think the prescription would be a few doses of “No, they’re not.” But that’s the thing about confirmation bias; your audience will notice, understand, trust, and remember all the examples that support their pre-existing belief, and they’ll be prone to dismiss the rest. There is a spotlight on evidence that supports what we already believe: That’s the best evidence, and the evidence that is most mentally accessible. The bias is powerful, and it protects and perpetuates itself. So does that mean any effort to persuade an audience away from the bias is doomed? Not according to psychologist Tom Stafford in an article in BBC.com from earlier this year. The article is entitled, “How to Get People to Overcome Their Bias,” and follows up with the subtitle, “Asking them to be fair, impartial and unbiased is not enough.”
Dr. Stafford reports on a classic psychology experiment conducted by researchers at Princeton University (Sawin, 1988). Charles Lord and his colleagues recruited people with strong attitudes either supporting or opposing the death penalty, then presented them with evidence that either confirmed or refuted the effectiveness of the death penalty. According to Stafford, “Confirmatory evidence strengthened people’s views, as you’d expect, but so did disconfirmatory evidence.” That is called biased assimilation. That part was not new, but then Lord’s team reran the study with two different instructions. One instruction was a motivation-focused instruction asking participants to consider the evidence, “as objective and unbiased as possible,” to consider themselves “as a judge or juror asked to weigh all of the evidence in a fair and impartial manner.” The other instruction was cognition focused: “Ask yourself at each step whether you would have made the same high or low evaluations had exactly the same study produced results on the other side of the issue.” Continue reading
By Dr. Ken Broda-Bahm:
The news cycle these days seems to be dedicated to keeping the question front and center: “Are we as a society losing our grip on facts?” And if we are, I’d add a complementary question, “What does this say to legal persuaders?” An article at the end of last year appeared in Law 36o written by trial consultant, Ross Laguzza, citing data from his own company to support the view that jurors may be on their way to becoming more fact-resistant. For example, 54 percent say “Beliefs guide my life,” as opposed to 46 percent who say “Facts guide my life,” and fully 58 percent agree with the statement, “If you feel really strongly about something you don’t need facts to prove you are right,” with two-thirds of those agreeing say they “strongly” agree. This creates the possibility of a declining reliance on external sources for validity. In deciding whether a drug is safe or unsafe, for instance, 60 percent would go with the opinions of patients rather than the opinions of doctors and scientists. Continue reading
by Dr. Ken Broda-Bahm:
Among the readers of this blog, there are a few people who write to me and let me know what they think about various posts. Sometimes it is to applaud a post, or to share an example where they’ve faced something similar. And sometimes, it is to take issue with what I’ve written. I appreciate that. It’s actually one of the benefits of blogging: The chance to interact over something substantive, and the chance to sometimes learn that I’m wrong. And I try to be open to the possibility. I believe what I write, and that’s why I write it, but I like to see it all as part of a dialogue, and that dialogue includes being open to the possibility of being wrong. So, as is sometimes pointed out to me, I could be wrong, I could be off base, I could be showing my biases in a hundred different ways.
The attitude I’m working on is called “intellectual humility,” and being aware that you could be wrong is an important personality trait. According to a recent study (Leary, et al., 2017), in fact, those high in it are better thinkers, better able to assess evidence and more likely to stick to their principles once those principles are established. The research article, discussed in a recent Psyblog post, involves four studies built around a new survey called the “Intellectual Humility (IH) Scale.” The trait is related to openness, curiosity, tolerance of ambiguity, and low dogmatism. Based on the experimental results, people with higher intellectual humility are more likely to be nonjudgmental, better able to evaluate evidence, less likely to flip-flop on issues. Those high in intellectual humility are also more attuned to the strength of persuasive arguments, making the personality dimension similar to another factor I’ve written about: rhetorical sensitivity, or the awareness that there are multiple ways to fulfill a particular communication goal. Humility also helps to facilitate better interaction and communication. “Not being afraid of being wrong – that’s a value,” says the study’s lead author, Mark Leary, “and I think it is a value we could promote. I think if everyone was a bit more intellectually humble we’d all get along better, we’d be less frustrated with each other.” Reading about this research got me thinking about the roles intellectual humility might play in different contexts, so this post will cover a few. Continue reading
By Dr. Ken Broda-Bahm:
Jurors and judges sit in court and evaluate credibility. They continuously assess who is telling the truth and who isn’t. But what is the bias in those determinations? Lie detection itself is a notoriously uncertain ability, with confidence often high, but with actual ability tending to hover more around the coin-flip level. But independent of accuracy, our beliefs about lie detection can tell us something about bias. Based on some recent research, it tells us something about racial bias and, more specifically, about the bias we bring to the task of telling whether witnesses of a different race are telling the truth or not.
The research (Lloyd et al., 2017) appears in the journal Psychological Science and is covered in a ScienceDaily release. The article is entitled “Black and White Lies: Race-Based Biases in Deception Judgments,” and reports on a series of experiments involving 605 research participants. The participants watched videos of Black and White individuals, some telling the truth and some lying. As they watched the videos, two boxes appeared on the screen: “Truth” and “Lie,” and participants simply made a judgement and clicked the appropriate box as they watched. In some versions of the study, the monitors were equipped with eye-tracking technology so that the researchers could tell which box the participants focused on first and foremost before choosing one to click. After watching videos, participants completed a survey on their attitudes toward fairness and prejudice, rating their level of agreement or disagreement with statements like, “It is important to my self-concept to be nonprejudiced toward Black people.” The results of the study carry two important implications for lawyers trying to identify or adapt to biases in the courtroom: Bias statements aren’t necessarily reliable and can be prone to overcorrection. Continue reading